Hughes v. Moore. 7 C.

By the counsel for Hughes, this has been considered as error. But the court can perceive no reason for this opinion. After this discontinuance, the parties are in precisely the same situation, as if all the issues both of law and fact which were joined upon that count, had been decided in favor of the defendant below. Such decision could not, in point of law, have affected the rights of the parties under the issues joined on the remaining counts, and consequently the discontinuance upon that count must leave those rights unimpaired. Whether this count remain in the declaration, or be stricken out of it, the right of the plaintiff in the circuit court, to recover on the other counts, will be precisely the same. The examination of this right must be conducted on the same principles as if the declaration had never contained the first count.

By the plaintiff in error it is contended, that the oyer, which was prayed of the written contract alleged in the first count, spreads that contract on the record, and makes it a part of all his subsequent pleas. This is certainly true with respect to all his subsequent pleas to that count, but not with respect to his pleas to the other counts. Different counts allege different contracts and different assumpsits. It is upon this idea alone, that a verdict can be rendered for the plaintiff, on one count, and for the defendant on another. Now the oyer of one contract cannot be the oyer of another contract, and cannot spread upon the record a contract supposed to be totally distinct from that which was read. The discontinuance of the first count produces no change in this respect, in the condition of the parties. Had it remained, it could have had no influence on the other counts, nor could the oyer of the written contract it stated, have transferred that contract to the other counts.

The second count states, that Cleon Moore was owner and proprietor of a plat and certificate of survey for lands lying in Kentucky, for which he was entitled to a patent from the government of that State; and that *James Hughes, without authority, [*191 ] transferred that plat and certificate, in the name of Cleon

Moore, to John Darby and the said Hughes, by which wrongful act a patent for the said land was issued to the said Darby & Hughes, to the great injury of the said Moore. That afterwards the said Hughes promised to pay to the said Moore, "the sum of seven hundred pounds for the said injury, and loss of the said land assigned as aforesaid; the said plaintiff at the same time, agreed to the said terms, and to accept of the said compensation in full of all claims and demands for the said land and for the injury aforesaid."

To this count, the defendant pleaded several pleas, one of which was, that neither the promise nor any memorandum thereof was made

Hughes v. Moore. 7 C.

in writing. To this plea the plaintiff demurred, and the court sus tained the demurrer.

The correctness of this decision depends entirely on the application of the statute of frauds to the contract stated in the declaration.

Cleon Moore is averred to have been the proprietor of a plat and certificate of survey on which Hughes & Darby obtained a patent by using his name without authority. This tortious act did not divest Moore of his equitable title. The land, in equity, was his. Did he part with his title by the contract stated in the declaration? The answer must, in the opinion of the whole court, be in the affirmative. "He agreed to accept of the said compensation in full of all claims and demands for the said land, and for the injury aforesaid. This, then, was an agreement to sell his equitable title to the land for the sum of 7001. The court can perceive no distinction between the sale of land to which a man has only an equitable title, and a sale of land to which he has a legal title. They are equally within the

statute.

It is, therefore, the unanimous opinion of this court, that the judgment upon the demurrer to this plea, ought to have been in favor of the defendant below. This plea being a complete bar to the second count, it is unnecessary to consider the other pleas.

[ * 192 ]

The third count states the title of Cleon Moore, and the injury sustained by him to the same effect with the second count. It then states a conversation between the parties, "concerning a compensation for the loss, and a liquidation of the damages sustained by the said Cleon, by reason of the misconduct and wrongdoing of the said James in the premises, and of the vesting them, the said Darby & Hughes, with the legal title to the said land as aforesaid; and it was then and there agreed by the said James, on his part, in consideration of the premises, and of the just claims of the said Cleon, for compensation and damages as aforesaid, that the said James should pay to the said Cleon, in satisfaction for the same, the sum of 7001.," &c. "And the said Cleon then and there agreed, on his part, to accept of the said seven hundred pounds in full compensation of his just claims as aforesaid," and, upon the same being secured, &c., to release and quitclaim to the said James, all his, the said Cleon's, claims and demands whatsoever, for compensation, redress, or damages, arising from the wrongdoing and misconduct of the said James in the premises, and from the vesting the said Darby & Hughes, with the legal title to the said land as aforesaid.

To this count, also, the statute of frauds was pleaded in bar. The plaintiff below demurred to the plea, and the defendant joined in demurrer.

Hughes v. Moore. 7 C.

Upon the true construction of the contract stated in this count, there was some contrariety of opinion among the judges. It is, however, the opinion of the majority, that the contract must be understood to import a sale of land, and that the sum of money stipulated to be paid, was, in contemplation of the parties, to extinguish the title of the said Cleon Moore.

The conversation was "concerning a compensation for the loss and a liquidation of the damages sustained by the said Cleon," not only "by reason of the misconduct of the said Hughes, but also by reason of the vesting them, the said Darby & Hughes, with the legal title to the said land." "And it was then agreed, in consideration of the just claims of the said Cleon, for compensation and damages, that the said James should pay the said Cleon, in satis- [193] faction for the same, the sum of 700l." To the majority of the court, it seems, that a compensation for the loss of the title to the land must be understood to be a compensation for the land itself, and that the receipt of this money by Cleon Moore, would not only have barred an action for damages, but a suit in equity for the title.

If this opinion be correct, then the contract is substantially for the sale of land, and, to be valid, qught to have been in writing. On this plea also the demurrer ought to have been overruled.

The fourth count states the injury more in detail, than is done in either the second or third counts. It states the claim of Cleon Moore, to be compensated for the loss sustained by his land being granted without his consent to Hughes & Darby. A conversation was then held, and "propositions for a compromise were made, touching the compensation and indemnification of him, the said Cleon," "and it was then and there agreed by the said James, in consideration of the just claims of the said Cleon, to be compensated for the damage and injury for the misconduct of the said James in the premises, and in consideration of the said James having procured and obtained a patent to be completed and issued to the said James, and the said John Darby, as last aforesaid, for the said land," that he, the said James, would well and truly pay the said Cleon, one other sum of 7001. This the "said Cleon agreed to accept in satisfaction of his just claims to compensation arising from the causes and considerations last aforesaid."

The compensation here offered and accepted, is for the injury sustained by Cleon Moore, in consequence of the grant of his land, by the State of Kentucky, to Hughes & Darby. It seems to the court, that this compensation was in lieu of the patent itself, and must have been intended to extinguish his right to that patent.. It is difficult to suppose an intention, in this case, to receive a full compensation

Barton v. Petit. 7 C.

for the loss of a title, and yet to retain the right to that title. The majority of the court is of opinion that, under the contract as stated in this count also, the payment of the money agreed to be [ *194] * paid, would have extinguished the right of Cleon Moore to the land in question, and that this contract likewise is substantially a contract for the sale of land. The demurrer, therefore, to this plea, ought to have been overruled.

It is unnecessary to examine other points which were made in the The judgment of the circuit court must be reversed, and judgment rendered for the plaintiff in error.

cause.

Judgment reversed.

BARTON V. PETIT and BAYARD.

7 C. 194.

If the plaintiff declare against two, he cannot take judgment against one alone, until he has gone through with such proceedings as the law provides to compel the appearance of the other.

In Virginia, if the marshal return on an alias capias that one defendant is not an inhabitant, the suit abates as to him.

THE case is stated in the opinion of the court.

P. B. Key, for the plaintiff.

E. J. Lee and Swann, for the defendant.

[ * 200 ] * WASHINGTON, J., delivered the opinion of the court, as follows:

This was an action of debt brought in the circuit court for the district of Virginia, by Petit and Bayard, against Seth Barton and Thomas Fisher, upon a judgment rendered in the general court of Maryland. The declaration is against the said Barton and Fisher, late merchants and partners, trading under the firm of Barton and Fisher, citizens and inhabitants of the State of Virginia, both of whom are alleged to be in the custody of the marshal. The record states that Barton, who had been arrested upon the capias, gave bail and put in the plea of payment, on which an issue was joined, and a verdict was rendered against him. He afterwards moved in arrest of judgment, and, amongst other reasons, assigned the following, namely: That the declaration states a joint cause of action against

Barton v. Petit. 7 C.

the said Barton, and one Thomas Fisher, and that, therefore, a judgment ought not to be rendered against him alone. The

*motion in arrest of judgment having been argued and [*201 ] overruled, judgment was rendered against Barton, and the record has been removed into this court by writ of error.

The general rule certainly is, that if two or more persons are sued in a joint action, the plaintiff cannot proceed to obtain a judgment against one alone, but must wait until the others have been served with process, or until the other defendants have been proceeded against as far as the law authorizes for the purpose of forcing an appearance. In England, the plaintiff must proceed to outlaw the defendants, who have not been served, before he can proceed against those who appear. In Virginia, where this suit was brought, the plaintiff might have taken out an alias and a pluries capias, or testatum capias, or, at his election, an attachment against the estate of such defendant; or, upon the return of a pluries not found, the court may order a proclamation to issue, warning the defendant to appear on a certain day, and, if he fail to do so, judgment by default may be entered against him.

But, whatever may be the mode provided by law for forcing an appearance, the plaintiff cannot proceed to obtain a judgment against one defendant in a joint action against two, until he has proceeded against the other as far as the law will authorize, unless the law dispenses with the necessity of proceeding against the other defendant beyond a certain point to force an appearance. Thus, in Pennsylvania, (as is known to one of the judges of this court,) if the sheriff return non est as to one defendant, the plaintiff may proceed against the other on whom the writ was served, stating, in his declaration, the return of the writ as to his companion.

To remove the objection which arises in this case, the plaintiff obtained a certiorari to the circuit court of Virginia, on a suggestion of diminution, and it now appears, by the certificate of the clerk of that court, that an alias capias issued against Thomas Fisher, which was not returned, but the plaintiff's attorney caused the suit to be abated as to the said Fisher, upon information which he had received that the said Fisher was no inhabitant of the district of Virginia. Had the marshal returned the writ and stated [202] this fact, the law would have abated it as to Fisher; in which case the objection to the subsequent proceedings against Barton would have been removed. But since the plaintiff could not have supported his action originally against one defendant on a joint cause of action, where it appeared by his own showing, or by a plea in abatement, that there was another person who was jointly bound,